E 93 
.B983 



I 



I 

i 



THE LEGAL STATUS OF 
THE AMERICAN INDIANS: 

WITH SPECIAL REFERENCE TO THE TENURE OF 

Indian Lands 



By GEORGE C. BUTTE 



A TRANSLATION OF AN ADDRESS ENTITLED, 
"DIE RECHTSVERHALTNISSE DER INDIANER IN 
DEN VEREINIGTEN STAATEN MIT BESONDERER 
BERUCKSICHTIGUNG DES EIGENTUMS AN GRUND 
UND BODEN," DELIVERED IN THE HERRENHAUS 
IN BERLIN, GERMANY, ON JUNE 1.9, 1912, BEFORE 
THE INTERNATIONALE VEREINIGUNG FUR VER- 
GLEICHENDE RECHTSWISSENSCHAFT UND VOLKS- 
WIRTSCHAFTLEHRE ZU BERLIN. 



Sift 

Author 

18 OECl9t2 



The Legal Status of the American Indians: 

WITH SPECIAL REFERENCE TO THE 
TENURE OF INDIAN LANDS. 

At the outset, Ladies and Gentlemen, permit 
me to express my gratification at being granted 
the opportunity of laying before you a message 
from a remote country. It is icdeed astonishing 
and to me a great satisfaction that you can be at 
all interested in the theme which I have been asked 
to discuss. It is an evidence of the catholicity of 
your interest in the science of law that you are 
willing to hear something more about an American 
Indian than a hair-raising, blood-curdling romance. 

You will have to be very indulgent with my 
speech. Indeed, my only excuse for appearing 
before you is the novelty of my theme and my 
familiarity with the same. My home is now, and 
has been for the past eight years, among the In- 
dians, on the largest Indian reservation in the 
United States. As an attorney at law I have par- 
ticipated in all kinds of land litigation involving 
titles to Indian lands and in the important suits 
decided last month by the Supreme Court of the 
United States. In the brief time I shall ask you 
to hear me, I can, of course, give you only a birds- 
eye view of some of the aspects of my theme, but I 
trust my presentation, however fragmentary it 
may be, will at least bring to your attention some 
facts that may interest you. 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



A few days ago I had the pleasure of hearing 
some lectures by Prof. Kobner, with relation to 
"Colonial Problems of the Present Time," in the 
course of which he stated that at the root of all 
difficulties in the administration of colonies lay two 
problems, the land problem and the labor problem, 
that is to say, how to bring the natives of the 
colonies to take up the methods of labor and the 
habits of life of the civilized people. It occurred 
to me then as it had never done before, that the 
United States, in its experience with the American 
Indians, has had the finest school for colonial ad- 
ministration that can be conceived. For it is just 
these two problems — I might add thereto the war 
against the introduction among and use by the 
Indians of intoxicating liquors— that have for a 
century engaged the attention of every session of 
the Congress of the United States. The remark- 
able thing is that we have had and still have the 
subject races in our very midst in colonies (called 
Indian reservations), varying in area from reser 
vations as large as the Hansa cities of Germany to 
reservations larger than any state of Germany ex- 
cept Prussia. These (in all some one hundred and 
fifty) are scattered over twenty-six of the states 
of the Union. The largest, known as the Indian 
Territory, and now included in the State of Okla- 
homa, embraces (with the adjoining Osage reser- 
vation) 21,401,418 acres. The Indian population 
of these internal colonies, as we may call them, 
varies from 60 in the State of South Carolina to 
117,088 in the State of Oklahoma. The total num- 
ber of redskins in the United States is now esti- 
mated at 265,683, of whom 56.5 per cent are full- 
blood Indians. The map, which I ask you to hand 
round, shows graphically how these colonies of 



—2— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



subject races are distributed within the limits of 
our country. I know of no other nation that has 
had such a splendid opportunity of learning at first 
hand how to deal with subject races and to govern 
colonies. You would think we ought to be able to 
tell how many hairs there are on the average 
redskin's head — but, alas, we do not do things so 
thoroughly as you Germans, gentlemen, and we 
have been neither wise nor consistent in many 
things we have done with regard to the Indians. 
I think, however, we have now reached the point at 
which we should have started a hundred years ago 
— we have only in recent years come to understand 
the ultimate destiny of the Indian and our relation 
to him. I will illustrate this by a true story. 

One fine morning, six years ago last April, a 
gentleman from New York and I were promenad- 
ing in Washington City along that magnificent 
boulevard, Pennsylvania Avenue, that leads from 
the Capitol Building to the White House. This 
gentleman was a prominent and active member of 
a society known as the Indian Rights Association 
— a voluntary society of benevolent citizens from 
all over the Union, who believe that our people 
have, collectively and individually, mistreated the 
Indian and often taken advantage of his inexperi- 
ence in business matters to defraud him out of his 
lands and his money. This society is very active 
in promoting the idea that the Indian needs the 
special protection of the law against the superior 
intelligence and greed of the white man; and they 
have aroused public sentiment by an active propa- 
ganda and strongly influenced the legislation of 
the Congress of the United States. 

In the course of our promenade, two gentle- 
men approached us. They were dressed in ordin- 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



ary civilian suits, with nothing" peculiar except that 
the taller wore a broad brimmed hat that suggested 
the Westerner. Striking, however, was the physique 
of this man — tall, erect, of solid build — his skin 
slightly browned as if from exposure to weather, 
his mustache turning gray. About the smaller and 
younger man, there was nothing striking but his 
sharp, drawn features, and a pair of keen, black 
eyes that twitched slightly and looked clean through 
you. As we met, the taller gentleman extended his 
hand and I said, ' i Good morning, Chief, how are 
you?" "Fine," he replied, "only a bit tired of 
these long drawn out conferences with the Indian 
Affairs Committee in Congress. I want to get back 
home." After exchanging greetings with his com- 
panion, I presented my New York friend, who then 
lapsed into silence, an astonished listener at the 
further conversation. We drifted naturally into 
discussing the bill then pending in Congress for 
the final disposition of all the lands and moneys 
of the Five Tribes of Indians among whom we 
lived — a measure of momentous importance to the 
Indians themselves, and to us whites who lived in 
the Indian Territory. The two gentlemen who were 
representing the interests of the Indians in this 
legislation displayed a wonderful knowledge of the 
scope and effect of the bill and all the proposed 
amendments; and especially broad and patriotic 
were their views concerning the relation between 
the Indians and the whites who lived on their 
reservation. When we parted, my New York friend 
ventured to inquire further about the identity of 
the gentlemen. "The tall man," I said, "is the 
principal chief of the Cherokee Indians, whom I 
have known for some years." "Is he an Indian?" 
my astonished friend asked. "Certainly, the Con 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



stitution of the Cherokees prescribes that only a 
native Indian can be chief." "What!" he ex- 
claimed, "A Constitution?" "Yes," I replied, 
"The Cherokees have had a written constitution 
patterned after ours for three quarters of a cen- 
tury — to be exact, since the 6th clay of September, 
1839." And while my friend fell to ruminating, I 
told him something of this powerful people among 
whom I lived. "And the younger man, is he, too, 
an Indian?" "Yes," I replied, "the national at- 
torney for the Cherokees, a wealthy man, and 
there's not a keener lawyer in the land than he." 
"Well, I see," said my friend of the Indian Rights 
Association, "I shall have to change my idea about 
the Indians needing the special protection of the 
law. These fellows could outwit any two brokers I 
ever saw on the 'change in Wall Street." I con- 
vinced my friend, however, that it_was unsafe to 
generalize from these instances. I told him he 
need not abandon his old benevolent ideas, but to 
add to them a new one, namely, that it is the 
Indian's destiny to take his place in the ranks of 
American citizens and to assume the duties and 
responsibilities of citizenship and to become as one 
of us. Any other course means the annihilation of 
the Indian race. It is only in recent years that we 
have endeavored to prepare the Indian for this 
newer and better life. Isolation and confinement 
of the Indian race on reservations — the old policy 
— resulted in war and in the degeneration of the 
Indian. Our government now concerns itself to 
instruct the Indian in the arts of peace. Free In- 
dian schools, in which the instruction is given in 
the English language, are to be found all over the 
Union; agriculture, dairying, livestock raising, are 
emphasized — the girls are taught sewing, cooking, 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



and music, besides the ordinary elementary 
branches. There are special colleges for the Indian 
boys, too. Missionaries have taught them religion 
and morals. The law has also stepped in and 
abolished polygamy among them. The government 
has established Indian hospitals in various parts of 
the country and is fighting with might and main 
those two great scourges of the Indian race — trac- 
homa and tuberculosis. The principal cause of 
these diseases being ignorance and unsanitary con- 
ditions of living, special effort is being made to 
teach the Indians how to take care of their bodies. 
Above all, contact with the white race, intermar- 
riages and the infusion of new blood have stimu- 
lated the energy of the dying race. *The white 
people have overrun the great Indian reservations 
in spite of stringent exclusion and non-intercourse 
laws; usually with the consent of the Indians 
themselves, who have by law adopted a great many 
white settlers as citizens of their tribes, and thus 
given them all the rights of native Indians, in- 
cluding often a share in the landed patrimony and 
the annuities of the tribe paid by the government. 
And thus, in time, it came to pass that there were 
many more whites on some of the reservations than 
there were Indians — and the old policy of isolation 
was effectively wiped out and the new policy, of 
which we have spoken, was substituted for it by 
force of circumstances. But the transition is by 
no means yet complete, and there is yet going on 
the contest between the old and the new policies — 
the old policy of isolation, restriction and restraint 
upon the Indian, both as to his person and his 
property, represented in the paternalistic care and 
guardianship of the government; and the new 
policy of parcelling out, allotting to each Indian 



—6— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



his proportionate share of the tribal lands and 
funds, conferring on him American citizenship, 
and as soon as he is reasonably well prepared for 
it, relieving him of all guardianship by the govern- 
ment and putting him on the same plane as his 
white brother. The battle between the old and the 
new policy is being fought out at the present time in 
my home state. It constitutes a bit of political history 
that is momentous not only because it involves an 
estate of twenty-one million acres of land marvel- 
ously rich in oil, coal and other minerals, and the 
ultimate destiny of six great races of Indians, but 
also because it determines our future national 
policy toward all other Indian races, and perhaps 
toward all other subject races, including those be- 
yond the seas. I shall discuss these policies only 
as they relate to the lands of the Indians. As to 
the many other interesting social, political and 
legal relations of the Indians, it would be attempt- 
ing too much even to mention them. 

We came to parting of the ways between the 
old policy and the new policy with respect to the 
Indians in the year 1871, if an arbitrary date can 
be fixed at all in such a case. Prior to 1871, for 
nearly a hundred years, the United States govern- 
ment had dealt with the Indian tribes as if they 
possessed the attributes of sovereign states. The 
Indian tribes lived in isolated communities on their 
separate reservations, they maintained a tribal 
form of government which in some of the tribes 
was quite well organized. They had their own 
judiciary and legislatures, or councils, as they 
were called, made and executed their own laws, and 
were left in almost complete freedom to manage 
their own affairs in such manner as they wished. 
The Indians, themselves, acknowledged no sover- 

— 7— 



J 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



eign political power except their own, the carefully 
prepared preambles of some treaties to the con- 
trary notwithstanding. The United States gov- 
ernment humored them in this notion, and though 
the Supreme Court of the United States, in an 
early case, pronounced the Indian tribes "a do- 
mestic, dependent people/' (*) the government con- 
tinued to negotiate with them only by treaties as 
with foreign nations. Whatever control the United 
States sought to exercise over the Indians was 
restricted almost wholly to regulating trade and 
intercourse between the whites and Indians and to 
the prevention of disorders that might result in 
uprisings and war between the races. Polygamy, 
"hoodooism" and other vicious and cruel practices 
of superstition among the Indians were tolerated 
until within the last decade. 

They owned their lands in common and lived 
as nearly in a state of nature as possible. Indeed, 
it was then deemed wisest to allow the Indian to 
live his aboriginal life and to interfere with him 
little as possible. It is true the United States 
government often appointed so-called Indian agents 
to live among the tribes and represent the govern- 
ment. But they were not there to govern the 
Indians; they served more as diplomatic represen- 
tatives — if I may be pardoned for using the term 
— whose duty it was principally to conciliate the 
Indians and report possible trouble. In early times 
these agents were often selected from traders who 
knew the dialect of the tribe. Some of them, like 
Colonel Hawkins, the agent to the Muskogees at 



*[The Cherokee Nation vs. The State of Georgia (9 U. S. 
178-235), decided in 1831 by a divided court; Justices Thomp- 
son and Story dissented and held the Indians "a foreign 
state."] 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



the beginning of the last century, married into the 
tribe and were the devoted personal friends of the 
Indians. But they were few. During the century 
in which the old policy of segregation of the In- 
dians reigned, their best friends were the Christian 
missionaries — all honor to them! — who came with 
their families at great peril and lived and labored 
among the savages, undergoing many deprivations 
and hardships. They contributed more than any 
other factor to the elevation of the Indian directly, 
and indirectly to the new policy of the government 
after 1871. I knew personally some of these 
heroes who have labored half a century in the 
wilderness and can testify to their lofty character 
and the esteem in which they are held by the 
natives. With their own hands they hewed out 
logs and with insufficient means built little mission 
schools, which served also as churches, orphanages 
and hospitals. Remote from the haunts of civil- 
ized men and often suffering from actual want of 
food, they and their families stuck to their posts — - 
the advance guard — the pioneers of a new civiliza- 
tion. Their work was never large. But character 
tells ; and it finally filtered through into the torpid 
Indian mind that the mode of life of a Christian 
people was better than savagery and they rose to 
receive it. Today the United States government 
spends annually an average of ten million dollars 
for the Indians, four millions of which is for 
schools. But it was the handful of early mission- 
aries who by their self-sacrifice and devotion, pre- 
pared the Indians to receive the benefits of civiliza- 
tion. I mention these things, not to praise un- 
duly, but as simple historical and political facts. 

It resulted from the peculiar isolation of the 
Indians under the old national policy, that the 



—9— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



tribes were recognized by the courts of the United 
States as " semi- independent" and as " quasi for- 
eign people," to quote the very expressions used. 
The United States so treated them. Though, by 
the Constitution of the United States, every child 
born on American soil is a citizen of the United 
States, this does not apply to Indians. Indians 
were from the beginning regarded as an alien race 
— the National Constitution of 1787 expressly ex- 
cludes them from the enumeration of citizens. 
Even today, Indians, though "the first Americans," 
can become citizens of the United States only by 
naturalization just as foreigners, or by special Act 
of Congress. In other words, the Indians were 
regarded as having a tribal citizenship and as 
owing allegiance already to a foreign power en- 
joying the attributes of sovereignty. 

Another remarkable right which the courts 
respected as belonging before 1871 to the Indian 
tribes, as sovereign states, was that they were en- 
titled, when at war, even with the United States, to 
the rights accorded recognized belligerents by the 
rules of international law. (Leigkton v. United 
States, 29 Court of Claims Reports 304). So that 
the murderous Indian raids of our early history 
were not rebellion and treason, but war. 

In the year 1871, this anomalous legal status 
of the Indian tribes was changed. The Congress 
of the United States, after an experience of nearly 
a hundred years with the treaty-making system of 
governing the Indians, determined upon a new de- 
parture, namely, to govern them directly by Acts 
of Congress. An act was passed on March 3, 1871, 
which contains the following clause: "No Indian 
nation or tribe within the territory of the United 
States shall be acknowledged or recognized as an 



—10— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



independent nation, tribe or power, with whom the 
United States may contract by treaty; bnt no ob- 
ligation of any treaty lawfully made and ratified 
with any such Indian nation or tribe prior to 
March third, eighteen hundred and seventy-one, 
shall be hereby invalidated or impaired." 

Until the passage of this Act of 1871, the 
power of the United States government to make 
treaties with the Indian tribes residing within the 
limits of any single state was never questioned. 
The single states of the Union, although the Indian 
tribes were within their territorial limits and per- 
haps subject to a dual jurisdiction, that of the 
local state as well as of the national government, 
had acquiesced so long in the old theory that re- 
garded the Indian tribes as foreign governments 
that they did not venture generally to undertake 
any control over the Indians. The Constitution of 
the United States restricts the treaty making 
power to the national government ; so that the 
single states were without power to conclude trea- 
ties with the Indian tribes under the old theory 
that they were foreign governments and an alien 
people. 

As a result of the Indians being amenable 
only to their tribal laws, and the local state within 
the territory of which the tribe dwelled, having 
no dominion or jurisdiction over the individuals of 
the tribe, a clash of sovereignties took place which 
became intolerable for the whites and the Indians 
alike; and to avoid further massacres and wars, 
the national government intervened and from 1820 
to 1840, concluded treaties with most of the Indian 
tribes whereby, as we shall see more in detail later, 
the Indians relinquished their reservations in the 
eastern states and removed to the then wild coun- 



—li— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



try west of the Mississippi river. Here the United 
States granted them lands to keep "as long as 
water flows and grass grows." It is proof of how 
the Indians felt that many of these treaties con- 
tained a clause like this one in the treaty with the 
Cherokees of May 6, 1828. The Cherokees should 
have a permanent home which should, "under the 
most solemn guaranty of the United States, be, 
and remain theirs forever — a home that shall never, 
in all future time, be embarrassed by having ex- 
tended around it the lines or placed over it the 
jurisdiction of any territory or state." This 
treaty to the contrary notwithstanding, the Chero- 
kee Indians are today contented and prosperous 
citizens of a recently erected state and willingly 
submit to the jurisdiction thereof. The attitude of 
the Indians and all conditions affecting their life 
have changed since the old policy has yielded to 
the new one. 

By the Act of 1871, the Indian tribes ceased 
to be treaty making powers and the Indians indi- 
vidually and collectively became wards of the fed- 
eral government. From this time forward, the 
whole attitude of the government towards the In- 
dians changed. We began to realize, especially 
after many cruel wars with the Indians — I remind 
you of the massacre of Custer and his men — we be- 
gan to realize the failure of the old policy of in- 
difference toward the Indian. We now began the 
hard task of preparing the Indian for American 
citizenship and absorption into the body of the 
nation; and this work is still going on. The un- 
f tutored children of the wilderness became the wards 
of the nation — and whatever her faults, a gener- 
ous, big-hearted nation she is. Congress has lav- 
ished on these wards lands and moneys and vic- 



—12— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



tuals — it has clothed and schooled them — been in- 
dulgent with their faults (to speak gently of some 
of the meanest crimes on record) — and has in 
every way played the fond parent. The nation has 
thrown about them all sorts of legal protection and 
been actually wasteful in recent years in its tardy 
generosity toward the Indian races. In 1877 the 
government could induce only 3,598 Indian children 
to go to school, where everything was furnished 
at government expense. Each year the number in- 
creased and in 1908 there were 25,964 Indian chil- 
dren being educated at a cost of $4,105,715 per 
year, approximately $150.00 per child. I mention 
the activity of the government in this respect only 
as an example. In all other fields, the government 
has reached down in like manner since 1871, to 
the individual Indian, and sought to prepare him 
for useful citizenship. 

With the passage of the Acts of Congress of 
March 3, 1875, January 18, 1881. July 4, 1884, 
culminating in the so-called General Allotment Act 
of February 8, 1887, a new epoch in the history of 
the Indians unfolded, namely that in which Con- 
gress began to deal with them as individuals, and 
not as nations, tribes or bands, as theretofore. 
Congress now aimed at the dismemberment of the 
tribes, as the correct solution of the anomalous 
legal status of the Indian. This was to be ac- 
complished in two ways, first, by dividing the 
territory of the tribe among the individual mem- 
bers of the tribe, thus abolishing the old system of 
community ownership by which all Indian reser- 
vations are held by the Indians; and, second, by 
conferring upon the Indians by special Acts of 
Congress the right of American citizenship, thus 
abolishing tribal citizenship. 

—13— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



The Genera] Allotment Act of 1887, like the 
Act of 1871, is one of the land-marks in the de- 
velopment of our policy toward the Indians and 
deserves a brief notice. It illustrates graphically, 
too, the change in method introduced by the Act of 
1871. Congress now steps in with an arbitrary 
hand and disposes of the territory of the Indian 
without consulting his wishes. Section 1 of the 
Act of 1887 provides in part as follows: 

"In all cases where any tribe or band of 
Indians has been, or shall hereafter be, located 
upon any reservation created for their use, 
either by treaty stipulation or by virtue of an 
Act of Congress or executive order setting 
apart the same for their use, the President of 
the United States be, and he hereby is au- 
thorized, whenever in his opinion any reser- 
vation or any part thereof of such Indians is 
advantageous for agricultural and grazing 
purposes, to cause said reservation, or any 
part thereof, to be surveyed, or resurveyed if 
necessary, and to allot the lands in said reser- 
vation in severalty to any Indians located 
thereon in quantities as follows : to each head 
of a family, one quarter of a section [a section 
is a square tract of land contaiuing 640 acres] ; 
to each single person over eighteen years of 
age, one-eighth of a section; to each orphan 
child under eighteen years of age, one-eighth 
of a section; to each other single person under 
eighteen years now living, or who may be 
born prior to the date of the order of the 
President directing an allotment of the lands 
embraced in any reservation, one-sixteenth of 
a section; Provided, that in case there is not 
sufficient land in any of said reservations to 



—14— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



allot lands to each individual of the classes 
above named in quantities as above provided, 
the lands embraced in such reservation or 
reservations shall be allotted to each indi- 
vidual of each of said classes pro rata in ac- 
cordance with the provisions of this act." 
The act then provides how and by whom the 
allotment of lands shall be selected, with special 
provision for minor children and orphans. If one 
will reflect that the head of a family usually saw 
to it that his wife's allotment and his children's 
allotments were selected so as to join his own, it 
will be apparent that many an Indian received a 
good sized farm to administer out of the public 
domain. This act was amended in 1891 by a clause 
repealing the provisions above mentioned giving 
different quantities of land to different classes of 
Indians and the law now grants one-eighth of a 
section of land to "each Indian," man, woman and 
child alike. 

Equally important and interesting as section 
1 of the Act of 1887, is section 6, which introduces 
a radical change in the personal status of the In- 
dian, as section 1 does in respect to his lands. 
The section is worth quoting. 

Section 6. "That upon the completion of 
said allotments and the patenting of the lands 
to said allottees, each and every member of 
the respective bands or tribes of Indians to 
whom allotments have been made shall have 
the benefit of and be subject to the laws, both 
civil and criminal, of the state or territory in 
which they may reside ; and no territory shall 
pass or enforce any law denying any such 
Indian within its jurisdiction the equal pro- 
tection of the law. And every Indian born 



—15— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



within the territorial limits of the United 
States to whom allotment shall have been made 
under the provisions of this act, or under any 
law or treaty, and every Indian born within 
the territorial limits of the United States who 
has voluntarily taken up, within said limits, 
his residence separate and apart from any 
tribe of Indians therein, and has adopted the 
habits of civilized life, is hereby declared to 
be a citizen of the United States, and is en- 
titled to all the rights, privileges and im- 
munities of such citizens, * * * without in any 
manner impairing or otherwise affecting the 
right of any such Indian to tribal or other 
property. 5 ' 

You will observe that this section has no ap- 
plication to Indian tribes in their collective ca- 
pacity — it is intended to cover the case of the indi- 
vidual Indian who has received his share of the 
tribal lands and taken up the habits of civilized 
life apart from the tribe to which he belongs. In 
fact, it constitutes an invitation to the individual 
Indian to come out from among the tribe and 
enjoy the privileges of independent citizenship. 
It is thus literally true, as President Roosevelt 
said in his message to Congress, dated December 3, 
1901: "The General Allotment Act of 1887 is a 
mighty pulverizing engine to break up the tribal 
mass. Under its provisions some sixty thousand 
Indians have already become citizens of the United 
States." 

If I were to stop here in the discussion of this 
act, I think you would have formed a rather clear 
idea that these newly-made citizens, who had re- 
ceived their share of the common property of the 
tribe and abandoned their tribal relations, were 



—16— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



thenceforth to be emancipated from the guardian- 
ship of the federal government to enter the strug- 
gle of life as other citizens of the nation and 
enjoy the same privileges; that they were to be no 
longer the wards of the United States, singled out 
for special care and hedged about by restraints and 
restrictions. Logically it has always seemed to 
me that the grant of full citizenship was incon- 
sistent with the continuance of a state of pupilage. 
The Indian who has been made a citizen is a 
member of the government which acts as guardian 
over him. As a citizen he is entitled to vote and 
hold public office in the nation. He may even be- 
come the President of the United States, (*) and 
thus as an official, on the one hand, administer his 
own estate, as a ward of the nation, on the other. 

And yet, gentlemen, this is precisely the anom- 
alous and remarkable situation of the Indians in 
the United States today. There are Indians who 
have been made citizens of the United States, sitting 
today in Congress as members of the House of 
Representatives and as Senators, who have helped 
frame and voted for and against statutes which 
bind and restrict them in their persons and prop- 
erty, as still the nominal wards of the nation. 
They are helping the nation to take benevolent 
care of themselves. 

To revert to the Act of 1887, Congress was 
willing in conformity with the new policy toward 
the Indians, to allot the Indian reservations in 



*[Some may question the accuracy of this statement on 
the authority of Elk vs. Wilkins, reported in 112 U. S. Sup. 
Court Reports, 94-123, with a strong dissenting opinion by 
Justice Harlan. Is an Indian "a natural born citizen" within 
the meaning of Art. 2, Sec. 1, of the Constitution, so as to 
make him eligible to the presidency? A.n exceedingly inter- 
esting academic question.] 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



severalty and to make the Indian who had become 
a citizen of the Union a freeholder in land, but 
it was unwilling to give him at once the same con- 
trol over his lands as other freeholders enjoy. To 
• protect the Indian, though now s citizen of the 
United States, against the "superior greed and 
intelligence" of his fellow-citizens, Congress pro- 
longed the status of wardship with characteristic 
American disregard of legislative consistency and 
theoretical consequences. The Indian becomes the 
owner of the lands granted him in severalty but 
only in the following manner : 

Section 5, Act of 1887. "That upon the 
approval of the allotments provided for in 
this act by the Secretary of the Interior, he 
shall cause patents to issue therefor in the 
name of the allottees, which patents shall be 
of the legal effect and declare that the United 
States does and will hold the land thus al- 
lotted, for the period of twenty-five years in 
trust for the sole use and benefit of the In- 
dian to whom such allotment shall have been 
made, or, in case of his decease, of his heirs 
according to the laws of the state or territory 
where such land is located, and that at the 
expiration of said period the United States 
will convey the same by patent to said Indian, 
or his heirs as aforesaid, in fee, discharged of 
said trust and free from all charge or incum- 
brance whatsoever: Provided, that the Presi- 
dent of the United States may in any case in 
his discretion extend the period. And if any 
conveyance shall be made of the lands set 
apart and allotted as herein provided, or any 
contract made touching same, before the ex- 
piration of the time above mentioned, such 

—18— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



conveyance or contract shall be absolutely null 
and void. 7 ' 

Though a senator of the United States, he can- 
not rent his land for one year; though he may vote 
and hold public office, he pays no national, state 
or local taxes either on his lands, the permanent 
improvements thereon, or the personal* property 
used thereon; (*) and though he is a citizen of the 
United States and you may not know he has Indian 
blood in him, if you call at his home and in a 
moment of good fellowship share with him the 
bottle of beer you have brought, you may be sent 
to the penitentiary. 

I have no quarrel with the benevolent policy 
which inspired these various restrictive provisions 
of the law, but I do deplore the irreconcilable in- 
compatibility between these restrictions and a 
grant of full American citizenship. This incon- 
sistency has led to untold complication and a great 
mass of litigation. To me it is not clear how there 
can be any middle ground between minority and 
majority. The grant of citizenship — the emanci- 
pation of the Indian— should have been withheld 
until he was prepared for it fully. 

It is a remarkable circumstance that the In- 
dians among whom I live, commonly known as 
the Five Civilized Tribes, namely, the Cherokees, 
Creeks, Seminoles, Chickasaws and Choetaws, were 
expressly excepted from the benefits of the Act of 
1887. Although the most intelligent and advanced 
in civilization and the most numerous and power- 
ful of all the Indian tribes, iimerican citizenship 
was not conferred on them until the year 1901, and 
the allotment of their reservations was first begun 

*[Cf. the case of TJ. S. vs. Rickert (1903) in 188 U. S. 
Sup. Court Reports, page 432.] 



—19— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



in the year 1898. While the policy of Congress 
toward the Indian in general was and is being pur- 
sued likewise in regard to the Five Civilized Tribes, 
the conditions prevailing among these tribes were 
so peculiar that different methods had to be fol- 
lowed in dealing with them and their lands. To 
me the history of the legal relations of these 
tribes, from savagery and a state of nature, 
through the various forms of tribal and territorial 
government, to their full absorption into the Ameri- 
can state and Union, appears a kind of microcos- 
mic history of our own civilization. I cannot un- 
dertake to relate this entire history, however in- 
teresting the comparison with our own may be, but 
with your indulgence, will indicate some of the 
leg;al relations which concern especially the lands 
of these Indians. 

I shall not begin with the remote so-called 
Colonial Era in our country, when the great un- 
settled wilderness to the north, west and south of 
the thirteen little colonies, left the Indians free to 
roam in an unbounded domain and hunt wild game 
where they liked. This was a time when the sev- 
eral tribes occupied enormous and undefined areas 
and the Indians had no notion either of territorial 
limits or separate and indefeasible title to land in 
an individual. A remarkable thing is that this 
total absence of the notion of fee simple title to 
land, of separate ownership and power of aliena- 
tion of land, survives among many Indians to this 
day. I heard Prof. Kobner tell of the natives in 
Southwest Africa, who sold the same tract of land 
several times to different individuals without the 
slightest compunction of conscience; and I was 
reminded of an experience I had once in the trial 
of a land suit. I was trying to break down the 



—20— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



effect of the testimony of a shrewd old Indian, 
which was rather damaging to the cause of my 
client. I had learned something about him which 
I thought ought to discredit the character of any 
man. So I asked him, "Aren't you the same 
George Turtle that has made and delivered six 
different warranty deeds to different people to the 
same tract of land?" 

"Yes, I am," he answered. 

I was delighted. I felt sure I had impeached 
him. But I was not satisfied (the besetting sin 
of a lawyer on cross examination). I wanted to 
force him to admit he was a good-for-nothing 
vagrant. So I asked him next, 

"What is your occupation?" 

"Sir," he answered, "I am a minister of the 
gospel." 

And I found out to my utter dismay that he 
had actually been a faithful missionary among his 
own people for forty years. 

The jury saw the point; they believed the old 
Indian's testimony and my client now has an ap- 
peal pending in the Supreme Court. 

Let us begin with the time when the whites 
began to make settlements around the Indian res- 
ervations and the latter were included within the 
territorial limits but not the legal jurisdiction of 
the newly erected states on the eastern coast, a 
condition of things that was intolerable, as we 
have seen. The Cherokees in North Carolina and 
Tennessee, the Creeks in Alabama, the Chickasaws 
and Choctaws in Mississippi, and the Seminoles in 
Florida, in the third decade of the preceding cen- 
tury, concluded treaties with the United States in 
which they agreed to relinquish their lands in these 
states — or as the Indian picturesquely puts it, "to 



—21— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



extinguish their ancient council fires" — and the 
United States agreed to give them in exchange (to 
quote the language of the Choctaw treaty of 1820) 
' 'for this small part of their lands, a country be- 
yond the Mississippi river, where all who live by 
hunting and will not work may be collected and 
settled together." Various other inducements were 
offered the Indians to win their consent to this 
removal — sums of money, blankets, supplies, the 
services of a blacksmith and a wagonmaker, etc, 
and all the expenses of the removal were to be 
paid by the United States. And thus these five 
tribes made the long journey through the wilder- 
ness to that great remote reservation which is 
known in all subsequent legislation specifically as 
the "Indian Territory," and now comprises the 
eastern half of the new State of Oklahoma. The 
scouts which the Indians had sent out in advance 
to "spy out" the land had indeed reported that it 
was a land flowing with milk and honey — for it is 
well watered and fertile — but neither they nor the 
government of the United States then knew that it 
was to prove to be unmatched by any equal area 
of land in the United States in the richness of its 
mineral resources, especially petroleum oil, coal 
and zinc ores. Here these five tribes were left un- 
molested for sixty years to govern themselves and 
live as they liked in conformity with the old na- 
tional policy toward the Indians. 

The early treaties relating to the removal of 
the Indians to these lands are significant from a 
legal standpoint because it is through them that 
every land title in the Indian Territory is traced 
back to the sovereignty of the soil. These lands 
lie within the region originally claimed by the 
French crown by right of discovery and occupation. 



—22— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



LaSalle and Marquette, in the seventeenth cen- 
tury, had explored the regions of the Mississippi 
river and laid the foundation of the French claim, 
which was soon followed by French settlements at 
New Orleans and other points in the Mississippi 
Valley. In 1803, (April 30), President Jefferson 
concluded at Paris a treaty with Napoleon (then 
Consul) whereby the United States acquired the 
enormous territory called Louisiana, for the sum 
of $15,000,000. Thus the United States, as the 
sovereign of the soil, could legally cede to the Five 
Civilized Tribes that portion of the " Louisiana 
Purchase' ' occupied by them. 

After the removal of the Five Tribes was ef- 
fected, boundary and other disputes arose among 
them and had to be settled by supplemental trea- 
ties with the United States. In these, the lands 
ceded to the several tribes are now definitely de- 
scribed; but words of conveyance are employed 
which have caused an endless discussion as to the 
nature and character of the title acquired by the 
Indians. For instance, in the treaty with the 
Creeks of February 14, 1833, the following langu- 
age is used: 

Article HI. "The United States will grant 
a patent in fee simple to the Creek nation of 
Indians for the land assigned said nation by 
this treaty or convention, whenever the same 
shall have been ratified by the President and 
Senate of the United States ; and the right thus 
guaranteed by the United States shall be con- 
tinued to said tribe of Indians so long as they 
shall exist as a nation and continue to occupy 
the country assigned them.' , 
Here we have an ostensible conveyance of a 
fee simple estate in land, coupled, however, with a 



—23— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



condition limiting the estate, which is to us simply 
unthinkable as a legal proposition. Our courts have 
sought to cut the Gordian knot by saying it was 
the purpose of the United States, in this treaty, to 
convey to these Indians "practically the whole 
title,' ' for there is no remainder interest reserved 
to the United States and there is only the bare 
possibility of a reversionary interest in the United 
States. But they frankly admit this is not a fee 
simple estate but approaches rather a base or 
qualified fee, as it was known at the common law 
of England. 

Take again the Choctaw and Chickasaw joint 
treaty with the United States of 1855. This con- 
tained the following stipulation: "And pursuant 
to an Act of Congress approved May 28, 1830, the 
United States do hereby forever secure and guar- 
antee the lands embraced within the said limits to 
the members of the Choctaw and Chickasaw tribes 
[Note: "to the members," not the Indian nation, 
as in the case of the Creek grant], their heirs and 
successors, to be held in common; so that each and 
every member of either tribe shall have an equal 
undivided interest in the whole ; Provided, however, 
that no part thereof shall ever be sold without the 
consent of both tribes; and that said land shall 
revert to the United States if said Indians and 
their heirs, become extinct, or abandon the same." 
Is this a present grant to the individual members 
of the tribe so that they hold as tenants in common, 
each owning a vested interest in the tract of land 
conveyed, proportionate to the number of members 
in the tribe? Or is this, like the Creek grant, 
simply a conveyance to these Indians as a tribe or 
nation, so that the land conveyed is national domain 
in which no individual citizen can be said to have 



—24— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



a vested, descendible interest, any more than he 
would have in the capitol building of the nation of 
which he is a citizen. 

If the above grant to the members of the Choc- 
taw and Chickasaw tribes and their heirs, in com- 
mon, conveyed a vested interest to the individual 
member, then it is questionable if Congress or the 
tribe could legally, by subsequent legislation, de- 
prive such member or his descendants of a pro- 
portionate share in the tribal lands when the allot- 
ment of the lands took place. As a matter of fact, 
when the allotment of these lands did take place 
after 1898, Congress and the tribe jointly enacted 
laws which excluded from participation in the di- 
vision many hundreds of persons who claimed to 
be Choctaws and Chickasaws, and the heirs and 
descendants of the original emigrant Indians. 
These seized with avidity upon the theory that their 
ancestors as members of the tribe and they as their 
heirs, were the beneficiaries of a direct grant to 
individuals in the treaty of 1855, and as tenants in 
common with other Choctaws and Chickasaws, they 
had a vested estate and were entitled to be heard 
in the partition of the common property. And only 
after years of litigation did the Supreme Court of 
the United States recently put an end to the con- 
fusion by rejecting this contention and adopting 
the view that the lands conveyed were not the com- 
mon property of the individual members but the 
national domain of the tribe. 

I said a moment ago that the Five Civilized 
Tribes, after their removal, were left unmolested 
for sixty years. This is true. But an event took 
place in this interval which created a situation 
among these tribes unlike that among any other 



—26— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



Indians. That event was the Civil war of 1861 to 
1865. 

The Indians of the Five Tribes owned a large 
number of slaves and naturally their sympathies 
lay with the Southern slave-holding states that were 
trying to secede from the Union. The Choctaws 
and Chickasaws openly espoused the cause of the 
Southern states and took up arms against the Union, 
and the other three tribes were likewise more or 
less active against the Union. When the war ended 
in the vistory of the Northern forces, the Indians 
found themselves in an odd predicament. The 
United States insisted that the Indians, by their 
conduct during the war, had committed treason and 
thereby abrogated the early treaties and forfeited 
all their rights thereunder. So in the year 1866, 
new treaties were concluded with these Five Tribes, 
The United States, in a spirit of conciliation, re- 
affirmed to the Indians their old rights, but re- 
quired them to elevate their former slaves and their 
descendants to equal citizenship in the tribe with 
themselves and to grant them a share in the lands 
and annunities of the tribe. The language, for 
instance, of the treaty with the Cherokees of 1866, 
provides summarily that the former slaves (there- 
after called freedmen) and their descendants should 
thenceforth enjoy "all the rights of native Chero- 
kees." This was galling to the Cherokees, as may 
well be imagined. I have heard old Cherokees say 
that this clause did not appear in the treaty in its 
original form and that a fraud was practiced on 
them. This, however, is nonsense; though it is 
certain the United States brought pressure to bear 
to have it inserted. The negroes, once the slaves, 
are suddenly made the equals of their masters. 
Indeed, in one respect, their superiors, namely: 

—26— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



the Civil war not only emancipated them from 
slavery but also conferred upon them full American 
citizenship — a blessing for which their former In- 
dian masters had to wait forty years longer. 

By the incorporation of the negroes into the 
tribes, a peculiar legal relation arose, the practical 
consequences of which we have only in the last few 
years realized. As we have seen, the United States 
feels that it is charged with a special obligation 
and responsibility as regards the Indians; it had 
despoiled them of their lands, decimated them in 
war, converted them from a free people to a sub- 
ject race and forced its civilization upon them, 
resulting in their threatened degeneration and ex- 
tinction as a race. In the hope of making amends, 
it afterward always regarded the Indians as under 
its special protection and care and treated them as 
the wards of the nation, and as the objects of its 
special bounty. But what about the eight thousand 
negroes who were now suddenly adopted into the 
Five Tribes'? Are they to be regarded henceforth 
as the wards of the nation? The United States has 
despoiled them of no lands, nor decimated them in 
war, nor made them a subject race — on the contrary, 
it has given the best blood of the nation to make 
them free and equal citizens. What of the twenty- 
five hundred white citizens of the United States 
that had intermarried into the tribes and been 
adopted by the tribes! Are they, too, to be re- 
garded as the wards of the nation and subject to 
all the restraints and restrictions of trade and in- 
tercourse thrown about the Indian who was not a 
citizen of the United States? 

It is a startling commentary on the haziness 
of our notion of equal citizenship that these two 
classes of non-Indians — white' men and freedmen — 



—27— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



in all future legislation affecting the Five Tribes, 
were also treated and provided for as wards and 
dependents of the nation. And the courts of the 
United States have given force to such legislation 
over the protest of the white men and freedmen 
themselves, on the theory that the control of Con- 
gress over the Indian tribes is plenary and all 
Indian questions are in their final analysis political 
and not judicial. 

I cannot here go into detail over this peculiar 
situation. Suffice it to say that whites, negroes and 
Indians all managed somehow to live together in 
the territory of the Five Tribes under tribal gov- 
ernment and subject to the Indian laws and cus- 
toms until the year 1890. By this date, one could 
notice the beginnings of that great silent shifting 
of the population of the nation toward the open 
west — a kind of inland migration of our people 
which may be considered now at its climax. In 
1890, there were already considerably more whites 
among the Five Tribes than Indians. In 1900 there 
were four times as many, and in 1910 eight times 
as many. Congress foresaw the coming change and 
prepared for it. In the year 1890, without consult- 
ing the Indians, it created a territory out of the 
domain of the Five Civilized Tribes, and named it 
Indian Territory. In the same act (Act of May 2, 
1890), it provided for this territory a system of 
courts and extended over it and made effective 
therein the greater portion of the private and crim- 
inal law of the neighboring state of Arkansas. But 
strange to say, Congress left the tribal govern- 
ments of the Indians intact, and left the Indian 
tribal courts to dole out justice in their rude way. 
The Indian legislatures continued to meet and 
enact laws. Thus there came about a ruinous clash 

—28— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



between two sovereignties on the same soil. Mean- 
time white settlers continued pouring into the coun- 
try, and the wildhess of the country, the confusion 
of the laws, and the laxity of the government gen- 
erally offered special inducement to adventurers 
and criminals. The Indian Territory got to be a 
coveted haven for fugitives from justice from the 
neighboring states of Kansas, Missouri, Arkansas 
and Texas. A committee appointed by Congress to 
investigate conditions in the Indian Territory — 
known in our history as the Dawes Commission — 5 
reported on November 18, 1895, that they found 
"a deplorable state of affairs and the general pre- 
valence of misrule.' ' They said further, "There 
is no alternative left to the United States but to 
assume the responsibility for future conditions in 
this territory. It has created the forms of govern- 
ment which have brought about these results, and 
the continuance thereof rests on its authority. 
The Commission is compelled by the evidence 
forced upon them during their examination into 
the administration of the so-called governments in 
this territory to report that these governments, in 
all their branches, are wholly corrupt, irresponsible, 
and unworthy to be longer trusted with the care 
and control of the money and other property of 
Indians citizens; much less their iives, which they 
scarcely pretend to protect.' ' 

This powerful arraignment of the tribal gov- 
ernments brought Congress to realize the mistake 
it had made in 1890 in not abolishing them. Sev- a 
eral acts were now passed culminating in the Act 
of 1898 that nullified all Indian tribal laws. The 
real truth of the matter is the tribal laws were 
made for Indians, not whites. The strain of the 
rapidly changing conditions was more than the 



—29— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



Indian system of government could bear and it 
became demoralized. But this does not prove it 
was a failure. Congress was now ready to do 
something radical. Inasmuch as the Five Tribes 
were considerably advanced in civilization and in- 
asmuch as their great domain lay directly in the 
path of the great tide of western immigration, it 
appeared to Congress inevitable that a new state 
would soon be erected here. In fact, Congress be- 
lieved this the best solution of the unfortunate 
state of affairs; and decided to do all in its power 
to hasten the preparation of the Indians for state- 
hood. The same act that nullified the tribal laws 
(Act of June 28, 1898, commonly known as the 
* Curtis Act, after the framer of the bill, Senator 
Curtis, himself, by the by, an Indian) — this act 
also provided a complete scheme for the dis- 
position of the tribal property and the allotment of 
the tribal lands of these Indians. But this act, 
like the Act of 1890, was not radical enough. By 
its terms, the lands were to be allotted, it is true, 
among the individual Indians, but the title which 
each Indian was to receive to his allotment of land 
was only an occupancy title, i. e., he was to receive 
only the exclusive right to use the surface of the 
lands allotted to him. It was soon apparent that 
this was only a partial step toward the dissolution 
of the tribe and the final disposition of the tribal 
lands. Congress was now ready to confer the abso- 
lute ownership of his allotment upon the individual 
Indian — to give him a fee simple title. An inter- 
esting situation now arose. Who was the legal 
holder of the fee simple title to these lands? Who 
could make the deed to the Indian allottee! Since 
1890, Congress had been enacting laws about these 
Five Tribes without consulting them at all, but 



—30— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



what was to be done in the matter of dividing up 
their lands, with the old treaties, like that of 1833 
with the Creeks, in which the United States con- 
veyed and guaranteed the fee simple title to the 
tribe concerned 1 ? The Act of 1871, under which 
Congress was now proposing to act on its own 
initiative, expressly provided that these old treaties 
should not be invalidated or impaired. Here was a 
situation unlike that among any other Indians, who 
generally have, at most, only an occupancy right to 
their reservations, the real title to which remains 
vested in the United States. To be brief, the United 
States found itself compelled to get the consent of 
the Five Tribes to the final allotment of their 
lands; and from 1898 to 1902, it concluded to this 
end various treaties and agreements with them, in 
the face of the declared policy of the Act of 1871, 
that the treaty making system of governing the 
Indians should be abolished. These are, beyond 
doubt, the last treaties the United States will ever 
negotiate with an Indian tribe. These treaties 
provided that the deeds or patents conveying the 
fee simple title to the allottees shall be executed by 
both the tribe concerned and the United States, un- 
der the great seal of the tribe, the principal chief 
signing for the tribe and the Secretary of the In- 
terior for the United States. There can be no 
question as to the sufficiency of such a form of 
conveyance to pass the whole title. Under these 
treaties, the complicated work of dividing up the 
magnificent domain of the Five Tribes continued 
until last year — 101,000 Indian citizens received 
deeds to lands varying in area among the different 
tribes from 40 acres to 320 acres each. In the 
year 1901, Congress made ' ' every Indian in Indian 
Territory' ' a citizen of the United States, and in 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



1907, Congress incorporated this territory in the 
newly created State of Oklahoma and made every 
Indian also a citizen of this new state. These In- 
dians have now lost their identity, both as a tribe 
and as individuals, and been swallowed up in the 
whirling current of western progress. The United 
States here again demonstrated its right to the 
title, 4 'The Crucible of the Nations." 

Radically as these laws last mentioned appear 
to break away from the doctrine of Indian de- 
pendence and wardship, and far reaching as they 
really went toward the actual realization of the 
government's new policy toward the Indian, Con- 
gress nevertheless deemed it still necessary to ex- 
tend the term of its guardianship in several par- 
ticulars, and to impose various restraints upon the 
Indian — a step, in my judgment, inconsistent with 
its former action and with the ultimate end of its 
policy. For instance, it is provided in the Allot- 
ment Treaty with the Creeks of June 30, 1902, and 
in the treaties with the other four tribes with slight 
modifications, as follows : 

" Lands allotted to citizens shall not in any 
manner whatever or at any time be encum- 
bered, taken or sold to secure or satisfy any 
debt or obligation, neither be alienated by the 
allottee or his heirs before the expiration of 
five years from the date of approval of this 
agreement, except with the approval of the 
Secretary of the Interior. An}^ agreement or 
conveyance of any kind or character violative 
of any provisions of this paragraph shall be 
absolutely void and not susceptible of ratifi- 
cation in any manner, and no rule of estoppel 
shall ever prevent the assertion of its in- 
validity. ' ' 

—32— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



Of the 160 acres allotted to each member 
of the Creek tribe, 40 acres were to be specially 
designated as a homestead; and the treaty con- 
tained a special provision that this homestead was 
to remain inalienable during the lifetime of the 
allottee not exceeding, however, twenty-one years. 
None of these lands, it is to be noted, could be 
alienated during the period of restriction, by a 
voluntary conveyance of the owner, nor by an 
involuntary conveyance, as for instance, by a judi- 
cial proceeding. An execution issued upon a judg- 
ment in favor of a creditor of the Indian could not 
touch these lands, though the Indian could sit as a 
juror or even as judge in the court. The land 
could not be sold for taxes, however delinquent the 
owner might be. A remarkable circumstance is 
that these restraints upon alienation of their lands 
applied also to white persons that had been adopted 
into the tribes (about 2500), and to negroes (the 
descendants of former slaves, some twenty-three 
thousand), who had been given membership in the 
tribes by the treaties of 1866. These never were, 
in any proper sense, to be regarded as the wards of 
the nation; and Congress soon realized that it was 
assuming an unnecessary burden and giving to 
these classes of American citizens an advantage 
over their fellow-citizens to which they were in no 
wise entitled. In 1904, therefore, Congress passed 
an act on its own initiative — mirabile dictu — 
amending the aforesaid treaties, and abolishing all 
restraint on the alienation of lands of allottees 
who were "not of Indian blood" (meaning, of 
course, the whites and the negroes). But here 
again Congress took only a half-way step — for, 
without any consistent reason whatever therefor, 
it excepted from the provisions of the Act of 1904, 



—33— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



all the lands of minors and all lands designated as 
homesteads of whites and freedmen, and left them, 
as before, subject to the restrictions contained in 
the treaties. 

From this time forward, Congress went back 
to the policy expressed in the Act of 1871, and, 
without the consent of the Indians, enacted a great 
number of laws in its capacity as sovereign, amend- 
ing said treaties and in various ways finally dis- 
posing of the lands and funds of the Five Civilized 
Tribes. One may well ask, if Congress could 
legally do this, why it wasted so much time and 
money and, what is more significant, made so many 
concessions to the Indians in negotiating treaties 
with them for the allotment of their lands? Why 
did not Congress, on its own initiative, step in and 
with greater dispatch bring to an end a condition 
of things which was described in 1895 as disgrace- 
ful, and which certainly improved very little before 
1904? 

By 1906, Congress deemed the work of break- 
ing up the reservation sufficiently advanced and the 
Indians themselves sufficiently capable to erect 
here a state. Accordingly, an "Enabling Act" 
was passed (June 16, 1906), permitting the inhabi- 
tants of the Indian Territory and of the neigh- 
boring territory, Oklahoma, to adopt a constitution 
and be received into the Union jointly as one state. 
This act provided that the Indians should be re- 
ceived as full-fledged citizens in the new state and 
be fully subject to its laws. However, here again 
Congress adopted a halting policy. It inserted a 
restriction, to my mind, inconsistent with the right 
of citizenship granted, as follows: "Provided that 
nothing contained in the Constitution of Oklahoma 
shall be construed to limit or affect the authority 

—34— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



of the government of the United States to make 
any law or regulation respecting such Indians, their 
lands, property, or other rights, by treaties, agree- 
ment, law or otherwise, which it would have been 
competent to make if this act (Enabling Act) had 
never been passed. " Since the admission of the 
state into the Union (Nov. 16, 1907), there have 
already been numerous serious clashes between the 
state and the federal government. This clause 
leaves vested in Congress the power in the future 
to nullify any law of the state as to a part of its 
citizens. This is the old "Nullification Doctrine " 
reversed. It cannot stand. It is the reductio ad 
absurdum of the false notion that an American 
citizen can be anything short of the free and equal 
peer of his fellows. 

I wish, in conclusion, to comment briefly, on the 
Act of Congress of May 27, 1908, which was passed 
under the reserved right to legislate further con- 
cerning these Indians. The primary purpose of 
this act was to remove the restrictions upon Indian 
lands and to release many classes of Indians among 
the Five Tribes from the further guardianship of 
the government. The question of competency of 
the Indian citizens was to play no further role, but 
a new test is introduced — namely, the degree or 
the fraction of Indian blood is made the criterion 
of emancipation. All lands, including homesteads, 
of citizens of less than one-half Indian blood (in- 
cluding, of course, whites and negroes), are released 
from all restrictions upon alienation and all future 
governmental supervision. Only the homesteads of 
Indians of one-half to three-quarters Indian blood, 
but all allotted lands of Indians of three-quarters 
to full blood, are to remain inalienable until 1931. 
Under the provisions of this act some 8,000,000 



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/ 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



acres of land were made alienable, and for a while 
land buyers did a flourishing business. But there 
still remain 37,000 Indians among the Five Tribes, 
from one-half to full-blood Indians, who continue to 
enjoy the anomalous status of being considered 
« legally incapable of transacting their own business, 
and I hasten to say, a goodly portion of them would 
hardly be qualified to act as ministers of finance. 
They are, however, left alone to earn their own 
living and to transact the ordinary business of daily 
life, but the government will not permit them to 
sell or even lease their lands without governmental 
supervision and approval. But despite this pro- 
hibition and despite the fact that any attempted 
conveyance of theirs is absolutely null and void, the 
37,000 seem to have done a lucrative business, for 
the United States government, in its capacity as 
their guardian, up to July 1, 1909, had filed 27,380 
suits to set aside the illegal conveyances they had 
made. These suits were not brought at the in- 
stance of the Indian — on the contrary, without his 
knowledge or consent. Many of the Indians, though 
they know their deeds are void, are honest enough 
to stand by them. Others go on their way merrily, 
like my preacher friend, executing new conveyances 
as fast as the government clears the title of their 
former ones. The situation is really ludicrous. It 
has its serious side, however, when a stranger from 
a distant state, unfamiliar with our peculiar laws, 
deals with an Indian, or what is less suspicious but 
more dangerous, with a white real estate broker of 
shady Indian titles, and just as he is congratulat- 
ing himself that he has bought a good farm at a 
fair price, is served by a United States marshal 
with a summons to defend his title in court, and he 
awakes to find he was swindled and his savings 



—36— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



gone beyond all recovery. I hasten to say such 
cases are few. Probably because there's scarcely 
a hamlet in the country that has not heard some 
exaggerated report of the land frauds among our 
Indians. How exaggerated these reports must be, 
you gentlemen, as jurists, will readily understand, 
when you consider that practically every land title 
among us is removed only two or three degrees at 
most from the sovereignty of the soil. Most of the 
original patents date from 1901 and many bear 
more recent dates. I have supervised many a pur- 
chase directly from the patentee. Thus all possi- 
bility of forgeries, legal complications in probate 
proceedings, old clouds upon title against which 
one has no relief but the statute of limitation, and 
the many other difficulties which occur in a long 
chain of title are here excluded. As to one thing 
only, one must always be on guard, namely, that 
the original patentee was not, as an Indian, sub- 
ject to any restrictions imposed by law upon the 
alienation of the land. With this obstacle removed, 
there are, to my knowledge, no cleaner, fresher, 
better land titles anywhere than those to be had 
to these Indian lands. 

Of the peculiar Indian laws and customs re- 
lating to marriage and divorce, and the descent of 
property — important as is their bearing upon the 
ownership of land — I cannot speak at length here. 
The discussion of them would consume a whole 
evening. I remember that I once appropriated two 
hours of the court's time in an exposition of one 
single custom existing among many tribes, namely, 
that the mother is the sole heir of the children, to 
the exclusion of the father and all his line. You 
must, therefore, let me summarize even at the risk 



—37— 



THE LEGAL STATUS OF THE AMERICAN INDIANS 



of incurring the criticism that my presentation has 
been fragmentary. 

I have sought to give you the merest sketch of 
the present legal status of the Indian and how it 
came about, I deduce two conclusions, not only 
from what I have here said, but also from much I 
have had to leave unmentioned ; (1) that any sub- 
ject race is capable of receiving and using the bless- 
ings of enlightened civilization and free govern- 
ment, and (2) that it is the duty, as well as the 
wisest policy of the ruling race from the first day 
of contact with the subject race, consistently to 
labor toward the end of full equality of the races. 
You may not agree with these conclusions. It 
would give me the greatest delight if I have said 
anything that may inspire correcter and better 
ones. 



NOTE: After the close of the address, as is customary 
in German scientific bodies, the chairman opened the house 
for a general discussion. A very lively debate was waged 
about the two conclusions drawn by the speaker, and various 
gentlemen having had experience in colonial administration in 
the German Colonial Office, and in the German African Colonies 
expressed widely different opinions as to the capacity — present 
or future — of the African subject races to receive the blessings 
of free government and enlightened civilization. We note 
here, however, only three points which lie closer to the 
speaker's theme. 

First, the Minister of Brazil to the German court, who 
was present at the meeting, stated that Brazil, following some- 
what the same policy as the United States, had successfully 
absorbed into the body of the nation all of its Indian tribes, 
and made some half million Indians — as he estimated it — 
citizens of the Republic of Brazil; 

Second, a Russian jurist made the interesting statement 
that in Russia there is a class of nomadic tribes who are 
treated as wards and restricted as to their property precisely 
as our Indians. They have none of the rights of citizenship. 
They may, however, be adopted as citizens by the vote of any 
community; and thereupon, immediately and ipso facto, all 
restrictions upon their power to contract fall away. 

Third, the speaker was asked to explain how the degree or 
fraction of Indian blood, which was made the criterion of 
emancipation in the Act of 1908, was ascertained; and as the 



—38— 



THE LEGAL STATUS OP THE AMERICAN INDIANS 



same question may arise in the reader's mind, the explanation 
is here repeated. This act provided that the rolls of the 
citizens of the Five Tribes approved by the Secretary of the 
Interior shall be conclusive as to the quantum of Indian blood 
of such citizens. A brief explanation of this is necessary. As 
we have seen, treaties were concluded between the United 
States and the various tribes between the years 1898 and 1902, 
looking to the final allotment of the tribal lands among the 
individual members of the tribes. Necessarily a roll of the 
legitimate members of each tribe had to be made to ascertain 
who should participate in the division of the property. These 
treaties provided that the rolls should he made up and ap- 
proved by the Secretary of the Interior. Accordingly, during 
the years immediately following the ratification of the treaties 
and up to 1906, when the rolls were finally closed by Act of 
Congress, each claimant to Indian citizenship, including the 
intermarried white people and the freedmen, appeared person- 
ally (parents and guardians appearing for children), before the 
agents of the Secretary of the Interior and gave sworn testi- 
mony tending to show his membership in the tribe concerned. 
Each applicant was asked whether he claimed membership as 
a white adopted citizen, as a freedman, or as an Indian by 
blood, and he was enrolled for what he claimed to be if he 
submitted sufficient proof. If he claimed to be an Indian, he 
was asked what degree of Indian blood flowed in his veins and 
a record was made of his answer on the approved roll. If he 
did not know or wasn't fully sure, a comparison of the ans- 
wers given by his parents, if living, or of other relatives, was 
made by the officials and a proper answer suggested. So far 
as his membership in the tribe was concerned, it was abso- 
lutely immaterial whether the Indian was full-blood or 1 /64 
blood Indian; and when the rolls were made up and approved 
(i. e. prior to 1906), there was no reason thought of for at- 
taching any special importance to ascertaining the precise 
fraction of the Indian blood of the claimant. However, it 
should be said, the work of enrollment was done with great 
care by the government, and the rolls are in the main ac- 
curate, even as to the secondary matter of the degree or 
fraction of Indian blood. Perhaps, if the government and the 
Indians had anticipated that the rolls would be in 1908, made 
the conclusive test of the Indian's emancipation or continued 
wardship, more circumspect answers would have been required 
and given as to the applicant's degree of Indian blood. 



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